Magdala House [2001] QBCCMCmr 105 (21 February 2001)

P J HANLYREFERENCE: 0614-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2338
Name of Scheme:	Magdala House
Address of Scheme:	12 Magdala Street ASCOT QLD 4007

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Loretta Maria Giudice (Accornero) and Kathryn May Kirby, the owners of lots 4 and 2 respectively



I hereby order that the application for an order that all motions on the agenda of the extraordinary general meeting held on 9 November 2000 proposed by the treasurer/body corporate manager be withdrawn, is dismissed.






STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0614-2000

“Magdala House” CTS 2338

The applicants, Loretta Maria Giudice (Accornero) and Kathryn May Kirby, the owners of lots 4 and 2 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking to have all motions on the agenda of the extraordinary general meeting, 9 November 2000, proposed by the treasurer/body corporate manager withdrawn.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicants state that the motions proposed by the treasurer/body corporate manager for consideration by the body corporate at the extraordinary general meeting held on 9 November 2000 should be withdrawn, as she is a non-voting member of the committee in her capacity as treasurer, and, as body corporate manager, she has no equity in the body corporate and therefore no jurisdiction to propose motions for the meeting.

The body corporate manager and all owners were invited to respond to the application.

Section 41 of the Standard Module provides the framework for submission of agenda motions. In essence, the committee and the owners are able to submit motions for consideration at a general meeting. There is no specific provision for a body corporate manager to submit motions, however, in practical terms, a body corporate manager may raise matters to which the body corporate should turn its attention, and then those matters may, in turn, be determined by the committee to be appropriate for consideration at a general meeting.

Section 106 of the Act provides as follows:
ú

Delegation to body corporate manager

106.(1) The body corporate for a community titles scheme may delegate

its powers to a body corporate manager, but only to the extent permitted

under subsections (2) and (3).

(2) The body corporate—

(a) may delegate to the body corporate manager some or all of the

powers of the body corporate’s committee, or of an executive

member of the committee; but

(b) must not prevent the committee, or an executive member of the

committee, from—

(i) exercising a delegated power; or

(ii) directing the body corporate manager about how a delegated

power is to be exercised.

(3) A delegation under subsection (2) may be revoked at any time.

(4) The body corporate may not delegate its powers to a person other

than under this section.

It is arguable that, in the event a body corporate committee does not formally meet to finalise a meeting agenda, the body corporate manager may prepare the agenda under the delegated powers given by section 106, including submitting motions which have been discussed with committee members, or which flow from other motions submitted by owners, for consideration at the meeting. The ultimate protection for owners is that the motions are then considered by the body corporate in general meeting, and if owners are opposed to the motions, then obviously they will vote against them.

In this instance, various motions were submitted by the applicants, and another owner, and as a consequence of those motions, the treasurer/body corporate manager submitted consequential motions, such as the motions dealing with the roof, gutter and soffit damage, and the motions dealing with the planter boxes. I have been advised that a formal committee meeting was not held to prepare the agenda for the extraordinary general meeting held on 9 November 2000, but that, in addition to the motions specifically submitted by the applicants, the body corporate manager discussed the other motions with the chairperson. I have been further advised that there is currently no elected secretary, and that no other owner wishes to fill the vacancy.

I also note that a number of the motions in respect of which the applicants complain, were defeated or withdrawn. These were motions 13, 14, 15, 32, 33 and 35. Several other motions were deferred for consideration. These were motions 6, 7, 10 and 11, although motion 10 was subsequently considered at the extraordinary general meeting held on 15 January 2001, and defeated. Motions 31 and 34 were carried, with 6 votes in favour of each motion, 1 vote against motion 34 and 1 vote abstaining on motion 31.

I do not propose to order that any of the motions proposed by the treasurer/body corporate manager be withdrawn. I am satisfied that all of the motions were proposed by the treasurer/body corporate manager in good faith in respect of matters which had either been discussed with the chairperson, or which were a consequence of matters raised by the applicants. There is no suggestion that the treasurer/body corporate manager was in any way financially interested in any of the motions, or that she improperly exercised a vote, since there were no committee meetings at which she could do so in any event. Furthermore, many of the motions have been disposed of as described above, so events have overtaken the application.

It should be noted that the committee is the administrative arm of the body corporate, and that a functioning committee is integral to the smooth running of body corporate business. If owners are elected to the committee, then they should ensure that committee meetings take place as required. This should obviate the necessity for applications such as this, as the committee will approve the agenda of any proposed meeting. They should also ensure that a vacancy on the committee, particularly one as important as secretary, is filled. It is the experience of this office that owners may be quick to criticize, but may be slow to assist in administering body corporate business.